§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (LORD SANKEY)
My Lords, I beg to move that this Bill be now read a second time. Your Lordships will recollect that it was referred to in the gracious speech from the Throne, where it was said:In conformity with the undertaking given to the representatives of My Dominions in 1930, a measure will be laid before you to give statutory effect to certain of the declarations and resolutions of the Imperial Conferences of 1926 and 1930. This measure is designed to make clear the powers of Dominion Parliaments and to promote a spirit of free co-operation amongst the members of the British Commonwealth of Nations.It will be observed from the Preamble to the Bill that the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland have severally requested and consented to the submission of a measure to the Parliament of the United Kingdom for making such provision with regard to the powers of Dominion Parliaments as is in the Bill contained.
The Bill passed through all its stages in the House of Commons with only one small drafting Amendment. It now comes before this House for your Lordships' approval and confirmation. I have therefore behind me the unanimous request of the Dominions and an overwhelming majority of the House of Commons. I do not propose to detain your Lordships at any very great length, but may I be permitted, in order to make my meaning clear and to put your Lordships in possession of the facts, first of all to trace quite briefly the history leading up to the presentation of this Bill and then to draw your attention briefly to the various clauses which it contains. 177 The history of the Parliaments of the Dominions is part of the annals of our Empire, and an Englishman cannot fail to feel proud in recalling or relating it. Newfoundland was our first born. It was discovered as far back as 1497 by John Cabot, the Bristol merchant adventurer, and its Legislature consists of a Legislative Council of twenty-five members and a House of Assembly of forty members. The Constitution of Newfoundland, however, does not depend (except in certain minor aspects) on Statute Law, but on prerogative instruments—namely, the Letters Patent constituting the office of Governor-General. Canada, also discovered by John Cabot in 1497, passed into our hands in 1759, when General Wolfe took Quebec, and the results of his victory were assured by the Treaty of Paris in 1763. By the provisions of the Treaty of Utrecht we had obtained the territory of Nova Scotia. The British North America Act of 1867 united the Provinces of Ontario, Quebec, New Brunswick and Prince Edward Island. They, with the Provinces who joined them later, now constitute the Dominion of Canada, with a. Senate of ninety-six members and a House of Commons of 245. Their rights and powers are regulated by the Act I have mentioned.
Australia was first visited by an English navigator in 1688, when William Dampier sighted it, and subsequently by Captain Cook in 1769. It was gradually colonised by us, and subsequently made rapid progress, aided by the discovery of gold in the middle of the nineteenth century, and by the successful rearing of sheep. In 1900 an Act was passed giving the Colony a Constitution, and January 1, 1901, saw the inauguration of the Commonwealth. It has a Senate of thirty-six members and a House of Representatives of seventy-five members. The Dominion of New Zealand, although visited by Captain Cook in 1769, was not colonised by us till 1825, and British Sovereignty was proclaimed in 1840. The Legislature consists of a general Legislative Council of forty members, appointed by the Governor for a period of seven years, and a House of Representatives consisting of eighty members, who are elected for three years. The New Zealand Act of 1852 gave to that Dominion its rights and powers. 178 In South Africa, the Cape of Good Hope was added to England in 1814, and Natal was proclaimed a Colony and annexed to Cape Colony in 1843. For a long time there were struggles between ourselves and the Dutch colonists, but a happy ending was reached by the South Africa Act of 1909, and May 31, 1910, saw the Union of South Africa. The Union has a Legislature consisting of a Senate of forty members, and a House of Assembly of 148 members, and their rights and powers are contained in the Act in question. For the moment I will pass over the Irish Free State.
Such then was the position of our Dominions at the beginning of this century. Those to which I have referred had separate Parliaments, but did not enjoy absolute freedom as to the measures which they could enact. Originally there was a Common Law rule that legislation by a Colony was void if it was repugnant to the law of England. A series of decisions given by the Supreme Court of South Australia in the middle of the nineteenth century relying upon this doctrine applied the rule so as to invalidate several of the Acts of the Legislature of the Colony. This led to an inquiry and the passing of the Colonial Laws Validity Act in 1865. That Act conferred upon Colonial Legislatures the power of making laws even though repugnant to the English Common Law, but it declared that a Colonial law repugnant to the provisions of an Act of the Parliament of the United Kingdom extending to the Colony should be void to the extent of such repugnancy.
I do not propose to trouble your Lordships with any remarks on the doctrines of reservation and disallowance which also crippled the powers of Colonial Legislatures. The doctrine of disallowance was of this character: there was always a power in the Crown to disallow an Act of a Colonial Legislature. I have searched the records and I think the last occasion upon which that power was exercised was as far back as the year 1873, nearly sixty years ago. The doctrine of reservation was a doctrine whereby a Colonial Governor could reserve an Act passed by a Colonial Legislature till the pleasure or the opinion of His Majesty was known. That power has long since become obsolete.
179 As far back as the year 1887, representatives from the Dominons began to meet with English statesmen in London to discuss matters of national and Imperial interest, and these meetings developed into the Imperial Conference, which is held at stated intervals.
The assistance which the Mother Country received during the Great War from her sons and daughters overseas, who hurried to her aid from the outposts of our far-flung Empire, will never be forgotten. It is too early to assess the changes caused by the War; their meaning and direction is still hidden from us; but it certainly began to stir new conceptions and new ambitions, and above all, it had a great effect upon our fellow-subjects in the Dominions. They became anxious to be more self-reliant and to sue the restrictions placed upon their legislative capacity removed. A new ideal had been set up. A new and great ethical and imaginative impulse had been created.
Southern Ireland became the Irish Free State by the Irish Free State (Agreement) Act of 1922. Even more important than the Act to my mind is the Treaty which was concluded before the Act was passed and upon which the Act is based. The executive authority is in the Crown and is to be exercised in the same way as in Canada. The Irish Free State Legislature consists of a Senate of sixty members and a Chamber of Deputies of 153.
There are some people, my Lords, who regret any change. Others again welcome every new thing. It is not for me to judge them, but I venture to think that the better plan is to steer a middle course—to accept some changes as inevitable, and to guide and direct the new movements. No Empire can remain stationary. It must go forward or go back. This, in my view, was the position in which a great English statesman found himself at the Imperial Conference of 1926. The late Lord Balfour, a trusted Conservative leader and tried servant of the State, presided over the Inter-Imperial Relations Committee of that Conference. On that occasion he made his famous Declaration, which was generally accepted. Permit me to read it, for the first and last time, though I doubt not most of your Lordships know 180 it almost by heart. He reported with regard to the Dominions that their position and mutual relations may be readily defined. He said:They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations.It seems to me at any rate that Lord Balfour was then setting up an ideal, and it is doubtful whether he ever dreamt that his formula would some day have to be translated into an Act of Parliament.
Some of us may think that it is regrettable to do this. There is much to be said for leaving such a relationship fluid and not fixed. There is much to be said for allowing such questions to be settled, as and when they arise, by tradition, good sense and compromise, rather than by strict logic and strict law. Here again, however, different men have different opinions. There are those who believe that ideals are meant for pursuit and not for capture—there are others who anxiously look forward to their realisation. Among the latter are our fellow-subjects in the Dominions overseas. To this I can give my personal testimony, if your Lordships will forgive a personal testimony, for it fell to my lot to preside over the same Committee in the Imperial Conference of 1930 as did the late Lord Balfour in the Conference of 1926. It has also fallen to my lot to have something to do with the Indian Round Table Conference, and one thing has impressed itself upon me very deeply, and that is a great dislike and a great mistrust of formulas. A formula may be a very present help in trouble, but it leaves a legacy of difficulty to those who are subsequently called upon either to interpret it or to carry it out.
The Imperial Conference of 1926 recommended that before the next Conference a Committee should be set up in London to examine and report upon the many questions connected with Dominion legislation. That Committee met in London in 1929. It was attended by representatives of the United Kingdom, Newfoundland, Canada, Australia, New Zealand, South Africa, the Irish Free State and India, and if I remember rightly it was presided over by my noble 181 and right hon. friend Lord Passfield, whom I see with us to-day. They produced what was in effect a unanimous Report for submission to the Imperial Conference of last year. That Report is known as the Report on the Operation of Dominion Legislation. It was submitted to the Imperial Conference of 1930, who passed the following resolutions:
That briefly is a history of the events leading up to the presentation of this Bill.
- "(i) This Conference approves of the report of the Conference on the Operation of Dominion Legislation (which is to be regarded as forming part of the report of the present Conference), subject to the conclusions embodied in this section.
- "(ii) The Conference recommends:
- "(a) that the. Statute proposed to be passed by the Parliament at Westminster should contain the provisions set out in the Schedule annexed;
- "(b) that the 1st December, 1931, should be the date as from which the proposed Statute should become operative;
- "(c) that with a view to the realisation of this arrangement, Resolutions passed by both Houses of the Dominion Parliaments should be forwarded to the United Kingdom, if possible by 1st July, 1931, and, in any case, not later than the 1st August, 1931, with a view to the enactment by the Parliament of the United Kingdom of legislation on the lines set out in the Schedule annexed;
- "(d) that the Statute should contain such further provisions as to its application to any particular Dominion as are requested by that Dominion."
Will you now permit me to call your attention to the various clauses of the Bill itself? Will you kindly look at the first Preamble?Whereas the delegates of His Majesty's Governments in the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, at Imperial Conferences holden at Westminster in the years of our Lord nineteen hundred and twenty-six and nineteen hundred and thirty did concur in making the declarations and resolutions set forth in the reports of the said Conferences.To that I have already drawn your Lordships' attention. I draw your attention, if I may, to a most important recital in the second Preamble:…..it is meet and proper to set out by way of Preamble to this Act that, inasmuch as the Crown is the symbol 182 of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.With the third and fourth recitals I need not trouble you, and I have already told you the effect of the fifth recital when I said that the various Dominions have requested and consented to the submission of the measure to this Parliament.
With regard to Clause 1 of the Bill, the draftsmen have been particularly careful, and mentioned the Dominions by name:In this Act the expression 'Dominion' means any of the following Dominions, that is to say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland.It is thought to be desirable not to prejudice the future constitutional development of the British Commonwealth. With regard to Clause 2, the object of the Bill is to do away with the Colonial Laws Validity Act, 1865. Subsection (1) says:The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.Now, that puts it negatively and subsection (2) puts it positively.
With regard to Clause 3, the matter is a little complicated. Your Lordships will recollect that in the case of all Legislatures territorial limitations upon the operation of legislation are familiar in practice, but the subject is full of obscurity and there is conflict in legal opinion as expressed in the Courts and in the writings of jurists, both as to the existence of the limitation itself and as to its extent. It includes such matters as taxation, shipping, air navigation, marriage, criminal law, deportation and the enforcement of laws against smuggling and unlawful immigration, and it was thought that the best way to place the matter beyond all possibility of doubt would be by means of the declaratory enactment in Clause 3, which says: 183It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.With regard to Clause 4, that is complementary. Clauses 5 and 6 contain two small matters with regard to shipping. Clause 5 says:Without prejudice to the generality of the foregoing provisions of this Act, Sections seven hundred and thirty-five and seven hundred and thirty-six of the Merchant Shipping Act, 1894, shall be construed as though reference therein to the Legislature of a British Possession did not include reference to the Parliament of a Dominion.I ought to tell your Lordships that Section 735 of the Merchant Shipping Act confers certain limited powers on the Legislature of a British Possession to repeal or modify certain parts of the Act; while Section 736 deals with the power to legislate with reference to the coasting trade.
Most of the following clauses have been put in after consultation with the Dominions. Would your Lordships kindly look at Clause 7? The first subsection says:Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder.I will not trouble you with the other subsections, but I will tell you the reasons for them. The clause now included was drafted in Canada as the result of a Conference held in April, 1931, between representatives of the Dominions and the Provinces. It will be seen that it is proposed that the powers in relation to the Colonial Laws Validity Act conferred by Clause 2 should be extended to the Provinces, but not the power of legislating with extra-territorial effect. Clause 8 refers to the Commonwealth of Australia and the Dominion of New Zealand, which are not quite in the same position as Canada, as they have certain powers of constitutional amendment, subject to certain limitations. I need not trouble your Lordships with that, nor need I trouble you with Clause 9 because we have had again a correspondence with Australia, and the matter is now quite in order.
With regard to Clause 10, that is, the safeguarding of the various Constitutions, it says: 184None of the following sections of this Act, that is to say, Sections two, three, four, five and six, shall extend to a Dominion to which this section applies as part of the law of that Dominion unless that section is adopted by the Parliament of the Dominion, and any Act of that Parliament adopting any section of this Act may provide that the adoption shall have effect either from the commencement of this Act or from such later date as is specified in the adopting Act.Clause 11 is as follows:Notwithstanding anything in the Interpretation Act, 1889, the expression 'Colony' shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of this Act, include a Dominion or any Province or State forming part of a Dominion.Clause 12 is the clause dealing with the title.
I said earlier that I was leaving the question of the Irish Free State and that I would come back to it later on. If your Lordships will permit me, as I have had rather a pressure of work in the last two or three weeks and as this matter needs great accuracy to state what appears to me to be the position of the Irish Free State, I think it is desirable that I should do so at this stage, although the point that has to be made is one which will more properly come up on the Committee stage. I know from conversations that I have had the honour of having with some of your Lordships that the question that has been agitating some of you is whether the Free State have a right to abolish the appeal to the Privy Council. The real point however, is not whether the Irish Free State Government or Parliament possess that power either moral or legal or will possess it if this Bill passes in its present form. The questions which we have to put to ourselves are two. First, will the effect of this Bill be to liberate the Free State from the obligations of the Treaty to which I have referred? Secondly, as regards the right of appeal, whether what we are doing now will have any practical effect one way or another upon the position.
To the first question the answer is clear. As things now stand His Majesty's Government in Great Britain is bound morally by the Treaty. Legally though the Government is bound, Parliament could in law repeal or amend the Act by which it is confirmed. But a moral obligation would remain, and it will be 185 conceded by all that no Government and no Parliament in this country could free themselves from that moral obligation. The Irish Free State is in a rather different position. The moral obligation rests upon them as heavily and binds them with as great a force as it rests upon and Binds the Government and Par-Lament of Great Britain. But they are bound in addition by a legal letter. The effect of this Bill will be to release them from that legal chain. But they have not contended, and they do not now contend, that they will thereupon become free to break the Treaty. Each and every one of these obligations will rest upon them and be of the same force and effect as it was before. Furthermore, as their powers to amend the Constitution are limited, so that they cannot make any amendment in it inconsistent with the Treaty, they will be as much bound as before to retain all those features of the Constitution which are bound up with the Treaty.
The mutual relationship between the Free State and the British Commonwealth of Nations would be far more binding if it depended, as in the case of other Dominions, upon the free will of the partners associated in it than if we were forced to rely for its continuance on the safeguard of a Statute. This is the principle which dictated the resolutions of the Imperial Conferences of 1926 and 1930 and of the Committee on the Operation of Dominion Legislation of 1329, I have no reason to doubt the honour of the Irish Free State any more than I have reason to doubt the honour of England, and I refuse to believe that the Irish Free State will break or repudiate a Treaty into which they have so solemnly entered. This is a matter which I am sure you will agree with me demands our most careful consideration.
If our Empire is to be maintained it will not be kept together by Acts of Parliament; still less will it be kept together by Acts of Parliament which fetter and restrict the legislative capacity of our fellow-subjects in the Dominions. If we welcome these new ideals and ambitions, if we guide and direct them in their proper channels, like streams of living water they will refresh and revive our Empire. But if we obstruct and dam them back, so, surely, will they over- 186 flow and cause nothing but damage and destruction. It is not so much a question of the good this Bill will do if it is passed, as of the harm which will most assuredly happen if it is rejected. I commend it to your Lordships for a Second Reading.
§ Moved, That the Bill be now read a.—(The Lord Chancellor.)
§ THE MARQUESS OF SALISBURY
My Lords, I need not tell your Lordships that I do not rise with the object of opposing the Second Reading of this Bill. I do not imagine there is any noble Lord whom I am addressing who desires that we should take that course. Though I have said so much I must submit that I regret the introduction of this Bill and the necessity of passing it. I do not suppose there ever was a measure proposed to Parliament and the country, indeed I may say to the Empire, which was received with so little enthusiasm. I am sure the noble and learned Lord will be convinced of that. Except on one occasion that I will refer to later, I do not think the noble and learned Lord got a single cheer from beginning to end of his speech. That was not from want of eloquence in the noble and learned Lord. It was because your Lordships, interpreting, as you always do, the general opinion of the common sense of the world, regretted that this Bill had ever become necessary.
I think you could see with what little enthusiasm this Bill is welcomed, not merely in your Lordships' House and in this country, but throughout the Empire, by the presence of all the restrictive clauses which have gradually appeared in the body of the Bill and which show for one Dominion after another with what hesitation and what precautions they approach this effort to put into precise language the wonderful elasticity of our Constitution. I cannot really improve upon the language of the noble and learned Lord. I think he said how difficult it was to reduce the fluid character of the Imperial Constitution to precise language. He said from his own experience, which we can entirely understand for we have witnessed his suffering with sympathy, how difficult it was to interpret a formula, whether that formula had reference to the Empire at large or to India in particular. Of course it is. 187 This interpretation of great constitutional principles in precise language is foreign to our whole conception of government. I do not hesitate to say that, so far as the words of this Bill are concerned, they would undoubtedly give rise to every sort of difficulty hereafter.
I am not qualified to deal with the juridical points, but there are other noble Lords who will no doubt address the House, who are far more qualified to deal with them than I am. No doubt, owing to the fact that we always manage to find some way out of difficulties and that, when this Bill comes to be interpreted, some issue will have to be found and some amendment produced, very formidable consequences will not happen. It is, however, a matter of very great regret, not only that this Bill should have to be produced at all, but that it should be produced under the circumstances of the present time. I hope my noble friends on the Treasury Bench will not think I am finding any fault with them in that particular.
§ THE MARQUESS OF SALISBURY
I am not always prepared to criticise like my noble friend. I do not criticise the noble Lords for the difficulties of public business at the present time. Everyone knows that the crisis through which we are passing prevents them arranging business as it ought to be arranged, but that this great constitutional measure, dealing with subjects of such vital importance, has got to be hustled through at the end of these sittings, with very little consideration in either House, shows a method of legislation in this country which cannot be defended and which I hope it will be the care of statesmen hereafter to find some other method of dealing with our business in order to avoid.
Turning to the policy of the Bill itself, I am aware that it is often said that the Dominions have now become practically independent. I deplore that phrase: I do not think that independence is the right phrase. It is true that they have become practically free. The great Dominions beyond the seas are able to do, with the passage of this Bill, practically what they like. That is quite true 188 —I am speaking generally and not speaking for the moment with reference to Southern Ireland—but they are not independent. The very text of the Bill and its restrictions show that they are not independent; indeed, it is their pride that they are interdependent. I heard a phrase used last night at a great Imperial gathering, at which I had the honour to be present, describing the Empire as a league of nations within the Empire. That was a fine constructive phrase but it is not independence, and it shows that these great Dominions depend one upon the other and upon the Mother Country. No one can go to the Dominions as I have had the honour of going, and move freely about and talk with them, without being conscious of the profound feeling which they have of connection with the Mother Country and with the other Dominions. Of course they feel it and that is what we ought to be proud of and ought to encourage. If the policy of the Party to which I belong prevails, that vital connection between the Dominions and the Mother Country will become stronger. We are only waiting for the production of the policy of His Majesty's Government and for its carrying out at Ottawa next year in order to have yet another testimony of the close connection there is and ought to be between the Dominions and the Mother Country, between all parts of His Majesty's great Empire.
I said just now that the Bill itself contains restrictions upon the powers of the Bill in reference to almost all the Dominions. In almost every case there are restrictions. The Dominion of Canada is protected, so far as the British North America Act is concerned. Australia and New Zealand are protected so far as their fundamental Constitutions are concerned. Newfoundland is protected. With regard to the last three named Dominions, the Bill, in point of fact, will not operate at all there except by their express wish and desire that it should so act. Even in the case of South Africa, in regard to which no restriction appears on the face of the Bill, we know that, when the South African Parliament came to deal with the Statute of Westminster, they saw that it was necessary to put in a restriction. By a Resolution of both Houses of Parliament they put in the restriction that the 189 Bill should be restricted in respect to? what are called the entrenched clauses of the South African Constitution, which are vital clauses, the protective clauses.
In regard to every one of His Majesty's Dominions, from the oldest to the youngest, there are restrictive provisions in this Bill in order to protect the integrity of the fundamental Statutes upon which they are based. There is one exception only—namely, Southern Ireland. There there is no restriction. When I read this Bill on its first appearance and noticed that Southern Ireland was an exception I confess I was astonished. What has Southern Ireland done that she should occupy this singular position? Is there anything in her history which would convince us that she-was more fit than any other of the great Dominions to occupy this special position? I confess I was astonished and I ventured—though it may probably have escaped your Lordships' notice—to address a public letter asking what was the explanation for this singular exception. I therefore read with the greatest attention all that passed in another place, and I listened also as carefully as I was able to do to the speech of the noble and learned Lord upon the Woolsack.
We are told that this Dominion would consider any restriction a reflection on its good faith. There is no such mistake in life, and certainly no such mistake in politics, as to be unduly suspicious, but have we not some grounds for hesitation? Lot me remind your Lordships that as I am informed, speaking in public on the day on which the Anglo-Irish Treaty was signed, the late Mr. Michael Collins, one of the signatories of the Treaty, said:Get the Treaty Act passed through the British House of Commons, complete the evacuation of British troops from Ireland, and the demand for full Republican rights must be conceded by Great Britain.Of course that observation was made at a time of great public excitement, and I would not for a moment charge the present statesmen in Ireland with responsibility for that sentence. Still it comes to this. There are elements in Ireland who held, and who hold, that view. Then I say it should not be surprising that we hesitated when we found that Ireland was to be treated in this exceptional manner.
190 Let me take a more modern example of what I mean as our reason for hesitation. Here is what the present Minister of Finance—if he is not the present Minister he was the Minister of Finance two years ago—said in discussing the power of the Judicial Committee of the Privy Council in Ireland. He is a Minister of the Crown in Ireland:If private individuals brought an appeal before the Committee, and its decision should reverse the judgment of the Supreme Court of the Free State the Government would take whatever steps were necessary to make the Committee's decision ineffective.Surely that is not a loyal acceptance of the jurisdiction of the Judicial Committee of the Privy Council. It is hardly necessary after what the noble and learned Lord on the Woolsack has stated to show what I intend to do in a moment but at all events I shall try to reinforce the point. As the appeal to the Judicial Committee of the Privy Council is a part of the Treaty, it does seem a most amazing statement for a Minister of the Crown in Ireland to have made in reference to this Treaty, which is the foundation of the position of the Free State, which, alone amongst the Dominions of the Crown, is subject to no restriction in its treatment under the Bill which we are now discussing.
The question I put is: What is the explanation of this exceptional treatment of the Free State? And I come to the main answer. The main answer is that it is unnecessary to put any restriction in. What was said in another place was that there was the Treaty, and the Treaty was binding whether this Bill passed or did not pass, and, therefore, it was act necessary to put a restrictive clause in this Bill, because so long as the Treaty subsisted the Irish Government were bound whether this Bill were passed or not. In support of that contention the Secretary of State for the Dominions in another place read a most important letter which had been received. It was a letter from Mr. Cosgrave, who is the head of the Irish Government. I am not going to read the whole of the letter, but your Lordships will allow me to cite one passage. This is a letter which Mr. Cosgrave, the head of the Irish Government, wrote to my right hon. friend the Prime Minister:I need scarcely impress upon you that the maintenance of the happy relations 191 which now exist between our two countries is absolutely dependent upon the continued acceptance by each of us of the good faith of the other. This situation has been constantly present to our minds, and we have reiterated time and again that the Treaty is an agreement which can only be altered by consent.I have characterised that letter as a most important State Paper, and so it is. That is a statement by the head of the Irish Government to the head of the British Government as to what he conceives to be the position with reference to the Treaty: that it cannot be modified in any particular except by consent—that is, the consent of both parties to the Treaty.
That statement was read by the Dominions Secretary in another place, and if the House of Commons carried this Bill, as it did, and if your Lordships carry this Bill, as I hope you will, it will be relying upon that statement of Mr. Cosgrave's that this Treaty cannot be modified without the consent of both parties. In order that I should not be thought to have put too much weight upon this passage from Mr. Cosgrave's letter that I have read, I want to remind your Lordships what followed in another place. There was a speech made by my right hon. friend the Lord President of the Council, and in the course of that speech Mr. Baldwin said:I am advised by the Law Officers of the Government that the binding character of the Articles of Agreement will not be altered by one jot or tittle by the passing of the Statute.So Mr. Baldwin laid it down that nothing we are doing here in your Lordships' House to-night will alter by one jot or tittle the binding character of the Irish Treaty. He went on a little later to say:Thus, the Dail now can only legally"—I hope the noble and learned Lord on the Woolsack will notice that the Lord President of the Council used the word "legally"—modify the Constitution in conformity with the Treaty, which is actually embedded in the Irish Free State Constitution.And my right hon. friend added:I think this country has every security.So, if your Lordships pass this Bill, you will do so upon the assurance of Mr. Cosgrave that the Treaty cannot be modified 192 in any particular except by consent, and upon the solemn assurance of my right hon. friend, speaking for His Majesty's Government, that the Treaty will not be less legally binding and that the Dail cannot modify it by reason of the passage of this Bill.
I admit that these answers to my questions go a very long way. I do not deny that the result of the debate in another place has profoundly affected my view. If we have got this assurance—an assurance without which your Lordships are not asked to carry the Bill—why then we are certainly in a very strong position in reference to the Treaty in the future. In concluding this part of my speech I must say that the efforts which we made—those of us who wrote in the newspapers and those of us who debated in another place—have been abundantly justified, because we have drawn and placed upon record this solemn assurance on behalf both of the British and of the Irish Governments. I should say that by reason of that, as far as I am personally concerned—of course I am only speaking as a private member of your Lordships' House—I shall not suggest or support any Amendment to this part of the Bill. I am content to remain upon the assurance which we have received.
There is one other matter which I think it is necessary to consider. It being conceded that Mr. Cosgrave has absolutely committed not himself only, but the Irish Government, that the Treaty cannot be modified except by consent, it is important to consider how far that carries the question. What are the provisions of the Treaty which are essential? Of course the Oath of Allegiance cannot be modified except by consent. That follows directly from the argument which I have addressed to your Lordships and by which I hope I have convinced you. Then there is the question to which I have already referred, the question of the jurisdiction of the Privy Council. I listened as carefully as I was able to the speech of the noble and learned Lord on the Woolsack upon this question. I confess I got rather mixed up between morally and legally at one period of his speech. I am not quite sure whether he held that the continuance of the Privy Council jurisdiction was morally binding upon the Irish Free State or whether he did not, but I would like to submit 193 reasons why it appears to me to be obviously an essential part of the Treaty. The reason I say that is because of a particular clause in the Treaty with which I am going to venture to trouble your Lordships.
I must apologise to the House for the number of extracts which I have been obliged to read. I know the House does not like quotations. I hope your Lordships will forgive me. This is. the clause of the Treaty:—2. Subject to the provisions hereinafter set out the position of the Irish Free State in relation to the Imperial Parliament and Government and otherwise shall be that of the Dominion of Canada, and the law, practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State.So the position of the Irish Free State towards the Imperial Government and Parliament is made by the Treaty precisely similar to the relations which sub-sisted at that time between Canada and the United Kingdom. That was laid down as an essential part of the Treaty and my right hon. friend the Lord President of the Council said: "We gave Canadian status to Ireland and we gave it freely." He repeated it a few nights ago, the exact thing. There cannot be a doubt, of course, that under the present conditions of the relations between Canada and the United Kingdom, under the conditions that existed at that time and still continue, the Privy Council jurisdiction exists. It exists both to determine any difficulty which may arise us to the interpretation of the Constitution and also as a final Court of Appeal to any aggrieved litigant if the Crown is willing to grant leave to appeal. That no doubt is the condition of things between Canada and the United Kingdom at the present moment. Therefore, it follows absolutely rigidly that the Privy Council's jurisdiction in both these elements, both as a constitutional authority and as the final Court of Appeal for the individual, continues as an essential part of the Treaty between Great Britain and Ireland.
I hope, my Lords, I have convinced you of that. But I would like to add—in order to make quite sure—that this is the interpretation which has always 194 been placed upon the Treaty by British statesmen, and by British statesmen at the time when the Treaty was established. At that very time there is a passage in a speech by my late noble friend Lord Cave, who was sitting in the very place where the noble and learned Lord now sits. He was discussing, not the Irish Agreement Bill, but the Constitution Bill which immediately followed it. The occasion on which he made this statement was a suggestion that the Irish Appeal Courts might fail to vindicate the authority of the Treaty. He said:It would of course be open to His Majesty in the exercise of his Prerogative, which is saved by the Constitution, and which indeed could not be taken away by the Constitution, to give leave to appeal to the Judicial Committee of the Privy Council.So Lord Cave had no doubt at the time the Treaty was passed that the constitutional authority of the Judicial Committee was preserved under the Treaty—for the very reason of course that I have stated, because it exists in the Canadian Constitution, and therefore by the express terms of the Treaty existed in the Irish Constitution as well. He stated it, and it was upon his assurance at that time that Parliament and your Lordships' House made a great settlement in Ireland.
If I turn from the constitutional point—and this I think is the last time that I shall have to quote to your Lordships—to the point of preserving the jurisdiction of the Privy Council as the ultimate Court of Appeal for a litigant, this is what was said in the debate on the Address in 1921, which was the occasion on which the Treaty was ratified in this House. On that very occasion a speech was made by the then Leader of the House, the late Lord Curzon. He was speaking about the Treaty, and asking you to ratify the Treaty. He said;The Privy Council remains the final Court of Appeal in Ireland, and if any community or any individual in Ireland feels, for instance, that his or their rights in respect of religion or religious education, as provided for in Article 17 of the Agreement, are infringed by any laws that may be passed in future in Ireland, their remedy lies in an appeal to the Privy Council.I suggest to your Lordships that in view of the express terms of the Treaty, and of the interpretation put upon the terms at the time when the Irish Constitution 195 was established, there cannot be any doubt that the jurisdiction of the Privy Council is an essential part of the Treaty between Great Britain and Ireland—an essential part of that Treaty which Mr. Cosgrave says cannot be altered without consent, and which the Lord President says remains legally binding whatever the effect may be of this Bill which you are now considering.
I apologise to your Lordships for having troubled you at this length, but I wanted to justify the course which I venture to think you ought to take in passing this Bill, after the very vital announcements which have been made in Ireland and in another place in connection with the passage of this Bill. Let me go back for one moment to where I began. I hope you will carry the Second Reading of this Bill. I hope it because above all things I would do nothing in the world to chill for a moment the splendid spirit which exists throughout our Dominions. No one can have witnessed, as I have, the loyalty of those Dominions to the Crown and the Empire, without feeling that it is a priceless possession. Now that the Bill has been proposed and submitted to Parliament, to reject it would undoubtedly be an act unwelcome, nay more than unwelcome, almost unfriendly, to those great Dominions. I hope, therefore, that the Bill will be carried, but I hope it will be carried bearing in mind what exactly we are doing, and that so far as Ireland is concerned we have done no harm to that Constitution or to the safeguards which are embodied in it.
§ LORD BUCKMASTER
My Lords, this is in my humble judgment a most momentous measure. It is not that its actual terms offend any of the relationships existing between ourselves and our Dominions. It is that it is, as I believe, for the first time, an attempt made to put into the form of an Act of Parliament rules which bind the various component parts of the Empire, and that I regard as a grave mistake. It is to my mind of the utmost importance that you should allow the free independent growth of independent life among all the various elements which together make up our Empire, but that you should avoid as far as possible putting a definition of what the relationships may be into the 196 unyielding form of an Act of Parliament. That is what this Statute has attempted to do. I often think that people make a great mistake in thinking that Acts of Parliament are some kind of panacea for wrongs. They are frequently nothing of the kind. They are often a grievous interference with liberty, though frequently necessary, and in my judgment ought to be avoided whenever possible, and wherever we have got anything fluid and living, like the relationships between ourselves and the various parts of our common Empire, we ought to keep it like that and not attempt to put it into a Statute.
I agree that the definitions do not appear to be very irksome or very dangerous, but if you had attempted by any means in your power to put into an Act of Parliament the rules which regulate the Constitution of this country itself, the result would have been disaster of a most appalling kind. The thing which has made this country grow is that it never has had a written Constitution of any sort or kind, and the consequence has been that it has been possible to adapt, from time to time, the various relationships and authorities between every component part of this State, without any serious mistake or disaster. That is what I think ought to be the ideal aimed at between ourselves and the various other nations which together make up the British Empire.
It is not because of the powers that are conferred upon them that I feel uneasy about this. I do not, and for this reason: everybody knows perfectly well that each one of our great Dominions can take to itself whatever powers it wishes. We are not going to interfere. Nobody believes for a moment that if one of the great Dominions determined to live separately we are going to war. There is an end of it. The thing which binds us together is not an Act of Parliament and not an ultimate resort to force. It is the fact that we have, as between ourselves and them, a bond the strength of which it is quite impossible to realise unless you happen to go there and can feel and test it for yourself. That is what I desire should be continued, and I feel myself uneasy about the attempt to define their powers in this way.
197 I would also like to say two more things about it. If this Act of Parliament does not need to be construed by some authority, it is the first Act passed by this Legislature which does not have that need. Supposing it does want to be construed, who is going to do it? There is not a word in the Act about it. Who is it suggested is going to be the authority which is to determine, as between ourselves and the Dominions, what this Statute means? The omission of something of that kind appears to me to be a very grave omission in the Bill, and I cannot for a single moment think that this measure is going to be unique in its construction and consequence, and that no such question will ever arise. Anyone who has been privileged to per-form the extremely ungrateful duty of representing your Lordships in the judicial part of the work of this House knows that there is practically no day when a case does not come before you involving the consideration of an Act of Parliament, and frequently it is almost impossible to make out what the Act of Parliament means. We have to do our very best to try and make it rational and give it a sensible operation. There will be something of that kind under this measure, and I want to know how it is going to be settled. For the moment I have not an idea. Is it suggested that they are going to take proceedings in the Courts over here, and bring it up to the House of Lords and to the Privy Council? What is to be done It appears to me to be a grave omission, and I do suggest that there should be some consideration of that question before this Bill finally becomes law.
I am not going to embark on the question raised by the noble Marquess, Lord Salisbury. I will say this, however, that I do think it is unfortunate that whenever we have to discuss the question of Ireland we always seem to approach it with a suspicious mind. I know, and everyone of us knows, that there were grievous matters in the past which it is hard to forget, and which do temper people's judgments and, it may be, excite their suspicions; but of one thing I am quite satisfied. If we desire to see Ireland become a strong, loyal component part of the British Empire—and we all do—there is only one way to accomplish 198 it, and that is to show that you trust them.
I say no more about the Privy Council, because I may point out to the noble Marquess that the analogy between Canada and Ireland in that respect, although undoubtedly the right of appeal exists, is very difficult to work out, because there is a Dominion Court of Appeal in Canada which does not exist in Ireland at all, and it very materially modifies the right of appeal to the Privy Council. But I am not saying that for the purpose of suggesting for a moment that the right of appeal to the Privy Council has not been established between ourselves and Ireland. Well, finally, if the Privy Council performs a useful work it will be maintained. If any part of the British Empire thinks that it can no longer effect any useful service it is not possible that we are going to insist upon its being maintained there, and I believe that is true of each component part of the British Empire. At the same time I believe there is no doubt whatever that they will all in the future, as in the past, continue to avail themselves of its services whenever occasion arises. I have nothing more to say. I shall support the Bill. Everyone must support the Bill who desires to avoid giving offence to our great Dominions; but I deeply regret that the Bill has become necessary and I feel quite satisfied that the free development of the British Empire would have been less impeded if it had never been introduced.
§ LOHD STONEHAVEN
My Lords, no one has found very much to say in favour of this measure, but there is a point which is perhaps deserving of attention—namely, that we have at last a definition of Dominion status. So far as the past is concerned that is a matter of academic interest, because, as has been pointed out, it has never occurred to anybody for a long time past that the Imperial Parliament would seek to pass legislation overriding a Parliament of the Dominions. But Dominion status is a matter of importance in connection with the future, and in relation to India, and I cannot help feeling that a definition, and the embodiment in an Act of Parliament, of what precisely is meant by Dominion status, will be a useful guide in considering the Constitution which it may be decided to confer upon India.
199 As regards the effect in the Dominions, it seems rather late in the day to criticise this Bill. It is the result of the embodiment in legislative form of the Declaration of Lord Balfour at the Conference of 1926, and, so far as I am aware, there was no criticism made at that time of the Declaration. It certainly did involve changes in the Dominions—changes that were not expected in some of them—but we are powerless to prevent those changes being carried into effect, and I am quite certain that, since this measure has become necessary, it is far wiser to pass it in no grudging spirit than to attempt to retain powers which, as was pointed out by the noble and learned Lord who spoke just now, if they are not found to fulfil any useful purpose are bound, under our free institutions, to die of their own accord. I cannot help feeling, therefore, that we shall be wise to follow the advice of my noble friend Lord Salisbury, who advised us to pass this Bill.
§ LORD LLOYD
My Lords, like the noble Marquess who spoke so cogently half an hour ago, I rise, not to oppose the Bill, but to voice my very profound anxiety as to its consequences. If we do not actually oppose this measure it is merely because we do not desire to do anything to offend or hurt the susceptibilities of our Dominions overseas. I have read all the speeches—remarkable speeches—made in another place, and I confess that I am rather puzzled to know whether, in our anxiety to do what our Dominions desire, we are really very correctly interpreting those desires, and I am going to ask my noble friend who will reply if he could put an end to my bewilderment on that question. Because, if you examine carefully what every State Parliament in different parts of the Empire has said, you will find a very large common measure of disagreement, and very vehement disagreement.
Although I have been warned by the noble Marquess that your Lordships do not like quotations,, perhaps you will give me your indulgence if I do quote one or two views from among those of various State Parliaments. Here, for instance, is a telegram received by the Agent-General for Tasmania not four days ago:Both Houses of Parliament passed Resolution protesting against passage of Statute of Westminster by Imperial Parlia- 200 ment. Government urge passage of Statute be deferred with view to full consultation with States. States have never been consulted and desire full opportunity for consideration their views. South Australia telegraphs it supports Tasmanian request Statute be not proceeded with.These are two statements. We further read of the Attorney-General in Tasmania making a very violent attack on the Statute. Then come to Western Australia, where you find. I think passed unanimously by both Houses of Parliament—I am not quite sure whether it was unanimously, but certainly passed—a Resolution very hostile to the Statute. It begins:That this Parliament of the State of Western Australia.…hereby enters its emphatic protest against the passing by the Parliament of the United Kingdom of a Statute.…and then it gives its reason. The Premier, Sir James Mitchell, added the following very definite words:To abolish the power of the Parliament of the United Kingdom to legislate for the whole British Empire was to weaken the links of Empire without gaining any good whatever 'by the step.In New South Wales the Leader of the Opposition, supported by practically the whole Opposition as I understand, registered very strong disagreement. And I am informed that the Government of Queensland telegraphed to the Dominions Secretary so late as last July stating its very grave anxiety as to the effect of this measure upon future relations between Australasia and the Mother Country. So much for the several States of Australia.
Coming to the Federal Parliament—it is notorious that Federal Parliaments do not always reflect the views of their component States—the Leader of the Opposition, Sir George Pearce (as we know, the Opposition has become the Government or may do so, because there is to be a General Election in Australia) said, just as the noble and learned Lord, Lord Buckmaster, said, that what they feared was that once they attempted to lay down in strict legal terms the relationship existing between sister Dominions or between one Dominion and the Mother Country, friction might easily arise. And he made a speech showing that there was no doubt whatever that he was very strongly opposed to the measure. Mr. Latham, the Deputy Leader of the Oppo- 201 sition at Canberra, made a very striking speech, and the well-known leader of the Australia Party, Mr. Hughes, also protested in the most definite terms. He deplored the fact that, the British Government "had listened to men who, in some instances, were newcomers to the table of the Empire, and had acceded to their demand that there should be such a modification of the existing relations between Great Britain and the countries they represented as would permit those countries to pose before the world as independent nations."
Nor was New Zealand's attitude a whit more favourable to the Statute. New Zealand made it perfectly plain chat if they passed the Act, as they did pass it, it was only because they thought the rest of the Dominions wanted it. They made clear provision that should enable New Zealand not to have the benefits of it; in fact, they contracted out of it. South Africa, which has been supposed to be so very anxious to have this measure, very significantly contracted out in another manner. South Africa was afraid that the South African Constitution and the relation of South Africa with the Crown might be endangered by this Statute. They were concerned to make special provision that the Act should not derogate from the entrenched provisions, as they are called, of the South Africa. Act, clearly showing that they considered this Statute as it stood involved rot only risk to their Constitution but also to their connection with the Crown. I do not wish to say a word about the Irish Free State, of which I have too little knowledge; but we remember that in Canada Mr. Bennett, now Prime Minister, showed, when Leader of the Opposition, very grave and serious misgivings. There was no particular welcome for the Statute there any more than in the other parts of the Empire.
I entirely agree with what every noble Lord has said in this House; I do not think any one of us would take the responsibility of voting against this measure now that matters have gone so far. But surely a full Committee of another place, for instance, is never a very good place in which to discuss legal measures. Would it not be better that we should have just this much hesitation and just 202 this much prudence—to refer this measure to a Joint Committee of both Houses, with further consultation, if necessary, with the Dominions? There can be no question whatever that if the Dominions want this measure no single person in the whole country would say no. But do let us be sure that they want it and that they want, it in this precise form. Let us be sure that we do not do what the noble and learned Lord, Lord Buckmaster, is afraid we are going to do—put the Empire into a constitutional strait jacket so that all simple ordered progress may be limited and fettered rather than developed. Like the noble and learned Lord, that is what I am afraid of. I am afraid that we have been too precipitate, pressed forward perhaps by one unit. The Secretary of State for the Dominions recently read in another place a letter, a little surprisingly I thought, in which it was clearly urged that this measure should be passed without delay because the Irish Free State has a General Election. Are we really to submit to such a paltry argument in regard to legislation affecting the whole future of our Empire? Surely we ought to take a more considered view and submit this measure to a Joint Committee of both Houses so that before it is passed we may be sure of two things: one that the measure is as clear as it can be and the other that we have the assent of and are really doing what our Dominions overseas require.
§ LORD DANESFORT
My Lords, may I be allowed as briefly as may be to refer to the question of the Anglo-Irish Treaty which has already been dealt with in a very powerful and impressive speech by the noble Marquess, Lord Salisbury? One reason for my rising is that I desire to address some questions to the Government, and if the answers are satisfactory they may go some way to alleviate or remove the undoubted deep anxiety that is felt, not only by the minorities in Southern Ireland but in many parts of this country, as to what effect the Statute of Westminster will have upon that Irish Treaty.
The Irish Treaty is the most solemn instrument that ever came into existence for regulating the relations between this country and Southern Ireland. Upon that Treaty the very existence of the Irish Free State was based. It was well 203 described in another place by Mr. Winston Churchill as being the title deeds of the Irish Free State. When the Treaty was being considered before it came into existence, certain restrictions and provisions were considered absolutely essential to be introduced into it, and for two main objects: for the purpose of protecting minorities in Southern Ireland, and for the purpose of protecting British interests after the Treaty came into operation. May I refer to some of those protections which were considered necessary? As regards minorities, one of the main protections inserted in that Treaty and considered vital at the time, and still so considered, was the right of appeal to the Privy Council. It was declared on the part of His Majesty's Government in another place that this right of appeal was necessarily inherent in the Treaty itself. That argument was developed by my noble friend Lord Salisbury and I think he satisfied your Lordships that the right of appeal was contained in an article. That has been reinforced by a high legal authority this afternoon, the noble and learned Lord, Lord Buckmaster. So I take it as absolutely conclusive that that right of appeal, or of applying for leave to appeal, to the Privy Council was an essential part of the Treaty.
That right of appeal has proved most valuable to minorities in Ireland already. I think I am right in saying that there has not been one single case of any importance in which the Privy Council did not reverse the decision of the Supreme Court in Southern Ireland. There is one case, which might be worth recalling to your Lordships, where the Privy Council prevented the perpetration of a grave injustice upon a class of men whom your Lordships would desire to protect—namely, ex-British civil servants in Ireland. It was a question of the amount of compensation that they should receive from the Irish Free State when they left its service. The result of the appeal was that those British ex-civil servants received a sum of £150,000 for compensation, which the Irish Courts had denied them and of which they would never have received a farthing if it had not been for their successful appeal to the Privy Council. So much for the appeal to the Privy Council as a valuable 204 and indeed essential protection for minorities and for constitutional purposes also.
There was another clause in the Treaty for the protection of minorities. I do not think that at the moment their religious liberties are being harassed, but those who have read the history of Ireland will find it very difficult to say that some future Government in Ireland might not harass the religious liberties of those with whom they are not in sympathy. It was, therefore, thought necessary by the framers of the Treaty to put in a special clause preserving the religious liberties of the inhabitants of Southern Ireland. So much for the protection of minorities. Other clauses were put in for the protection of British interests and your Lordships would not desire to ignore those restrictions. They were of several types. One was to ensure complete facilities for our ships in time of peace and in time of war in entering the ports of Southern Ireland. There was a most important provision as to the form of the Oath of Allegiance which has to be taken by every member of the Parliament of Southern Ireland. We know that that has been attacked. Then there were clauses giving us facilities for and control over such matters as cables, which go from Southern Ireland to America and elsewhere, wireless stations, lighthouses and many other matters.
There is one point on which everyone is agreed, both in this House and in another place—namely, that the provisions of this Treaty must be sedulously safeguarded and observed. The question is whether the provisions of that Treaty are threatened by the Bill in its present form. I confess I was somewhat alarmed when I read and heard the strong opinions expressed by eminent constitutional lawyers, who told us that, if this Bill is passed without any amendment or exemption, such as was proposed in another place, it will give legal power to the Southern Irish Parliament to abolish all or any of the provisions of the Treaty. It has been suggested—and I should like to know the views of the noble Viscount who will reply for the Government on the point—that it is quite true that the Bill will give legal power to the Free State to abolish the whole or part of the Treaty, but that they 205 would still be under a moral obligation to abide by it. I do not like—if that be the true view—giving a man legal power to do an immoral thing. I therefore ask my noble friend, if there is any doubt us to whether this legal power is given by the Bill or not, whether it would not be proper to say that there shall be no legal any more than there is any moral right for the Free State to alter this Treaty.
I confess I was surprised when I read the statement of the Lord President of the Council in another place in which he told the House of Commons:I am advised by the Law Officers that the binding character of the Articles of Agreement will not be altered by one jot or tittle by the passing of the Statute.I hope my noble friend Lord Hailsham will be able to tell us whether that statement commends itself to him or not and whether, if this Bill is passed without alteration, there is a legal power in the Free State to alter the provisions of the Treaty.
The noble Marquess refers to a remarkable letter which was read in another place coming from Mr. Cosgrave. What; I should like to know is this. The appeal to the Privy Council is an integral part of the Treaty. Upon that we are all agreed. Does Mr. Cosgrave or does he not intend, as soon as this Kill is passed, to bring in legislation into his own Parliament in order to abolish that right of appeal? I should like a definite answer on that question. Some little time ago his intention was to do so, because, at the annual convention of the Government Party on the 5th of May this year, Mr. Cosgrave made this declaration—I apologise for making a quotation:Appeals to the Judicial Committee from our Supreme Court, are an anomaly and an anachronism. Their continuance is incompatible with our status and is an insult to our dignity and our sense of fair play. In the interests of both countries and for their better friendship this appeal must disappear and soon.May I ask the noble Viscount who will respond for the Government what is the real intention of Mr. Cosgrave on this point? If he is unable to answer me today, perhaps he will communicate with the Irish Government and with Mr. Cosgrave and let this House have a definite answer before Tuesday next, when the 206 House goes into Committee on this Bill, as to what the intentions of Mr. Cosgrave are about abolishing the appeal to the Privy Council. It is important that we should know what his intentions are, so that we may act accordingly.
In other respects we have the assurance of Mr. Cosgrave that he does not intend to alter the Treaty because he says—quite truly as I think, unless the Bill allows it—that the Treaty cannot be altered without the consent of both parties to the Treaty. I accept his assurance of his intention, but neither Mr. Cosgrave nor his Government can last for ever. I do not wish to say one word derogatory to the good faith of Mr. Cosgrave, but anyone who has followed the course of affairs in Ireland in the last few years knows that the tenure of office of a Prime Minister in Southern Ireland is a dangerous one. What I should like to ask Lord Hailsham when he comes to reply is this: Is this declaration of Mr. Cosgrave, made as it was in his letter, binding on his successors? Suppose another Prime Minister comes in and he desires to depart from that declaration of Mr. Cosgrave, would he be justified in doing so, and if he did so should we be able to tell him he had no right or authority to do so because Mr. Cosgrave had bound the Irish Free State not to embark upon such a course? Upon that I confess I should like a little enlightenment from the noble Lord who replies.
There are only two very short points further that I wish to refer to. One is this. We have heard it said that if the Free State chose to alter the Treaty, whether there was an Amendment or not they might pass legislation abolishing it in all or in part, and we should be unable to protest. I venture to think there is a vital and essential difference which has been overlooked in that statement. Supposing the Free State, if there is no Amendment, were to repeal the Treaty, and supposing that the eminent jurists who said that they have a legal right under this Bill to repeal the Treaty are right, how could we protest? Their answer would be: "You gave us the legal power to do this; deliberately, by your Statute of Westminster, you gave us legal power to alter or abolish this Treaty; what right have you to protest?" I confess it would be rather difficult to 207 answer that question. My noble friend will perhaps give us the answer.
He might say "Oh, there is a moral obligation." They say: "You have given us a right to neglect this moral obligation, to act legally, and our brain is not quite subtle enough to distinguish between this legal power and this moral obligation which does not impress us very much." But let us suppose, on the other hand, an Amendment was put into this Bill saying "You shall have no legal right, or moral right for that matter, to alter the Treaty," and they did alter it, surely we should be in a very strong position. We should be able to go to them and say: "You have illegally, without legal or moral justification, altered the Treaty, and we protest against it." What is more, I think we could make some very efficient protests. People talk about war, but there is another mode which I might suggest that might be very effectual in making the Free State comply with their obligation if they at some future time broke it, and that is the method of the tariff. If we were to impose a tariff upon cattle and other things coming from Ireland, I think their attitude would be altered in perhaps a week, or a month, and in all probability the mere threat of such a proceeding would prevent them from acting wrongly.
The last point I wish to refer to is this. It has been said, I think by the Lord Chancellor, and certainly by the President of the Council in another place?—I hope I am not misrepresenting them—that we must trust the Dominions, and that the Dominions—I do not think the Lord Chancellor said this but the President of the Council did—would resent the introduction of any Amendment restricting the power of the Free State to break the Treaty, and would regard it as something of an insult. Why? I cannot conceive that they would take up that attitude. Such restriction on the Free State would be no more an insult to the Free State than asking a man "Are you going to keep your word"? It would be no insult to the Dominions, because it would not affect them in the slightest degree, and, so far from being an insult to the Free State, to my mind it would be a great advantage to the Free State if you went to them and said: "You, Mr. Cosgrave, expressing the opinion of your Parliament, say that you do not want this 208 Treaty interfered with; on the contrary, that you desire to keep it intact until by mutual consent any part of it is altered. Thank you, we will put that into an Act of Parliament to pledge you and to make your declaration and your intention binding upon everyone." So far from it being an insult I think he ought to welcome—I do not know whether he would welcome—it as carrying out his own intention. In other respects I conceive this Bill not only must be, but ought to be carried, but I would ask my noble friend to give answers to the questions I have put, and I shall be extremely glad if these answers remove that deep anxiety which I confess I feel at this moment.
§ LORD PASSFIELD
My Lords, I rise not to trouble your Lordships at any length but simply to say on behalf of the Opposition that we entirely support this Bill. We not only support it, but we suggest that it had better be passed without any amendment, as the noble Marquess who opened the discussion himself suggested. As I had the duty of presiding at the Conference of Dominion lawyers who practically worked out the clauses of this Bill, I want to say a few words only in answer to some statements that have been made in the debate. When I came to the Colonial Office I found that a conference of lawyers had been already arranged for, it having been accepted by my predecessor as a necessary consequence of the Imperial Conference of 1926. That Conference not merely endorsed Lord Balfour's Declaration, but, in its Report, went on to point out that it would be necessary to have a legal conference in order to work out the consequences of that Declaration in law, and, obviously, contemplated that there would have to be changes in the Statute Law of this country in order to make good that Declaration of Lord Balfour at the Imperial Conference.
The Dominion lawyers came over from every one of the Dominions, and I can only say, in reference to what Lord Lloyd suggested, that they not only testified to the strong desire of nearly all the Dominions for the necessary legislation to carry out the Declaration of 1926, but were persistent in their view. Whenever it was pointed out that possible separate legislation for each Dominion might not be convenient, and that uniformity, such as has been secured, for 209 instance, in the Merchant Shipping Act, was a very valuable thing to each of the Dominions as well as to this country, their answer was: "You said you meant equality; if you meant equality how can you claim to have an Imperial Statute dealing actually with Dominion affairs? We will certainly get uniformity. We think uniformity is desirable. But we must make our own Statutes about our own affairs." That was pushed at every point, and the present Bill is practically the result of that legal conference as discussed again in the Imperial Conference of 1930, and as modified by the subsequent correspondence.
Whilst I respect very much the feelings which have been expressed by several noble Lords as to the importance of allowing the growth of the free and independent life with regard to constitutional matters, and the danger of limiting that growth by the words of a Statute, I want to point out that it is one of the objects of this present Bill to give that freedom. I do not think it is sufficiently noticed that the Act of 1865 which this measure practically repeals, whilst it was partly an enfranchising measure conferring freedom upon the responsible Governments of the Colonies, as they were then, to pass their own legislation relating to their own affairs even if it was contrary to British Common Law, yet really did put into the rigid framework of an Act of Parliament the British Constitution on the subject. It laid down specifically that no Statute hereafter made by any on of those Colonies, even in matters which were strictly entirely within their own province, should be valid if it was in contradiction of a Statute of this Parliament applicable to that Colony. That was putting into the rigid framework of an Act of Parliament something which I think we are all agreed now had better have been left to free development.
It is a major purpose of this Bill to remove that fetter, to remove the strait jacket, the rigid framework into which the Constitution was put by that Statute of 1865, which I assume would now be regretted by the noble and learned Lord, Lord Buckmaster, by the noble Marquees, Lord Salisbury, and by the noble Lord, Lord Lloyd, all of whom said that it was a mistake to put into a rigid framework this free and growing Constitution. That 210 was done by our Statute of 1865. It is the purpose of this Bill to remove that fetter, to take the Constitution once more out of the rigid framework, out of the strait jacket, and to leave it free for future growth. That aspect of this measure does not seem to have been noticed. It is that aspect of this measure which caused it to be pressed for by the Dominions—not merely by the Irish Free State, which I do not remember has been very strong on the point at all, not merely by the Union of South Africa, but as strongly as any by the Dominion of Canada, the greatest of all the Dominions, who most strongly object to this Imperial Statute continuing to fetter them in passing legislation applicable only to their own concerns. That is the main reason why this Bill is required—actually to restore freedom to the Constitution and to remove that fetter.
I would point out to those noble Lords who assent with regret—with heartfelt regret—to the passing of this measure that only by a measure of this kind can you give that freedom. Therefore I who want that freedom am heartily in favour of this measure. I do not support it with any regret. I support it because I stand for the freedom of the Constitution and against fettering it by Acts of Parliament as we have done in the past, by Acts of Parliament which actually continue to be in force. I have said that, that Act of 1865 was a fettering Act. Let me point out another fetter which has been imposed and which we seek to remove by this Bill by the giving of extraterritorial jurisdiction, to use the technical term, to the Dominion Parliaments. At the present time a Dominion Parliament cannot secure the necessary legislation in a matter which is distinctly its own concern. Let me give an instance. Suppose the Australian Commonwealth learned that there was a little conspiracy, let us say to forge Australian banknotes, and that that was being carried on on a Pacific island not under the sovereignty of any Power by Australian subjects who had taken refuge there in order to carry on this forgery of Australian banknotes, and that these people could go back to Australia and if they did not actually utter the forged notes in Australia could not be proceeded against. The Commonwealth of Australia claims that it ought to have power to pass a Statute making these acts, done by Australian subjects 211 for the purpose of actually committing crime in Australia, an offence so that if these people came back to Australia they should be liable to be proceeded against. That is just one instance of the fetters into which we have put the Dominions at present by denying them the power to pass any Act having extraterritorial effect even when it concerns their own subjects and crimes against their own good order and government. It is because of such cases that this Bill is a necessary measure if you want freedom for the Constitution to grow and develop without fetters.
An Act of Parliament can in many cases, I would like to remind the noble Lord, Lord Danesfort, be an instrument of freedom and not necessarily an instrument of restriction. In this case this is an instrument of freedom—to give freedom to the Dominions, and to this country in its relations with the Dominions, to grow and develop without the fetters of an Act of Parliament. As I say I am not only supporting this Bill but I am in cordial sympathy with it. I do not support it reluctantly. Possibly I have had to work through it move than other noble Lords, and I support it cordially, ex animo, because I believe the British Commonwealth of Nations cannot be maintained on the basis of legal fetters and Acts of Parliament reaching from one end of the earth to the other. I believe the only security for the British Commonwealth of Nations is the frank and whole-hearted acceptance of the principle of voluntary co-operation in perfect freedom. It is because I take that view that I support this measure.
§ LORD BANBURY OF SOUTHAM
My Lords, at this late hour I shall not take up more than a few minutes, but I should like to express my anxiety about this Bill as it affects Ireland. My noble friend Lord Danesfort has asked the noble and learned Viscount below me to give an opinion upon certain legal points. In the course of a fairly long life I have never yet met a lawyer who agreed with another lawyer. Therefore I do not think, with all due deference to my noble and learned friend below me, that his opinion will really have very much weight if in years to come the Irish Free State desires to establish a Republic. The only security so far as I can see that we are going upon is the 212 security stated by my noble friend the Marquess of Salisbury. During the first part of his speech I made up my mind that whatever happened I would go into the Lobby against the Bill, but he rather changed his tone towards the end and as I always follow my leaders I rather changed my opinion too.
But what are we really relying upon? We are really relying upon a letter of Mr. Cosgrave, backed by the opinion of two Law Officers. As I have said, I am quite certain that I could find two learned lawyers who would disagree at once with the opinion of the two Law Officers. I think that is an absolute certainty. Therefore we are left with the statement of Mr. Cosgrave. I do not doubt for a moment that Mr. Cosgrave was quite sincere when he wrote that letter, but Mr. Cosgrave is not immortal. He will die, as we all shall, and when he is dead who will pay the slightest attention to what he has said? But not only is he not immortal. He may lose his position and the gentleman whose name I cannot always pronounce, Mr. de Valera, may come in and we may be quite certain that that gentleman will not pay the slightest attention to anything Mr. Cosgrave has said. Therefore in the circumstances I very much regret that we have not had any indication that an Amendment will be put into the Bill on the Committee stage dealing with this matter. May I ask the noble and learned Lord on the Woolsack what is the objection to making it quite clear? If the noble and learned Lord thinks that nothing will happen, why not put it in the Bill? Then there can be no doubt and no question of disagreement between learned lawyers upon that point.
§ THE SECRETARY OF STATE FOE WAR (VISCOUNT HAILSHAM)
My Lords, I do not think that any one can possibly complain of the tone and level at which this debate has been carried on, or of any of the objections which we have heard delivered with regard to its subject matter. For myself, I should like to say at once that I find myself very largely in agreement with the reluctance which was expressed by my noble friend Lord Salisbury, and reiterated by my noble and learned friend Lord Buckmaster—the reluctance which evidently oppressed both of them against trying to confine the 213 living growth of the British Constitution, or the Constitution of the British Empire, within the strait waistcoat, I think the expression was, of an Act of Parliament.
I think, differing I am afraid hi that regard from the noble Lord, Lord Passfield, that if the question which I had to answer this afternoon was whether or not is were better to allow that Constitution to go on developing in the future as it has in the past, without any legal alteration, but allowing it such assistance as a Statute to remedy a particular difficulty such as that to which the noble Lord referred—such assistance as may be necessary for that kind of purpose—to allow it to continue to grow and develop as circumstances might mould it, in the direction which was most useful for the free institution of our great Commonwealth of Nations, in a manner which in my judgment is in full accord with the spirit and tradition and genius of our people, I should have no hesitation in deciding against any Act of Parliament. But that is not the question which we have to determine this evening, and I think it is fair to say that both the noble Marquess and Lord Buckmaster have recognised that that is not the question. The question is not whether we should prefer to go on without an Act of Parliament, but it is whether, after the occurrences of the last few years, and after the discussions which have taken place, it is better in the interests of the Empire as a whole to reject this measure or to accept it.
No one can look back on the history which was traced by the noble and learned Lord on the Woolsack without recognising what a tremendous development, amounting indeed almost to a revolution, in the whole Constitution of the British Empire and the relationships between the Dominions and the Mother Country, has taken place within the lifetime even of some of us in this Chamber this evening. When the British North America Act was passed in 1867 nobody dreamt that there was then being conferred upon the Dominion of Canada the sort of status enshrined in the Statute of Westminster. Long decades after that the Dominion grew up to nation-hood. Slowly fresh considerations and conceptions took hold upon the imagination and traditions of our people, until now Dominion status means something wholly different from what it was thought 214 to mean when first a Dominion was constituted. We in this country, and I think our brethren in Canada, realise that fact. I do not think anybody in Canada doubts, any more than any one in this country doubts, that the Dominion of Canada has complete freedom to do whatever she likes, just as much as if we had no British Empire to make us stronger than we are separately; but when during the present century other Dominions were admitted to the same status as Canada, and especially the two last of the Dominions, South Africa and the Irish Free State, were admitted to this Commonwealth, and had conferred upon them these rights, everyone must recognise that with a great section of the people of each of those Dominions there was a very real distrust of what this country meant when she conferred Dominion status upon them, and as to whether that status really gave them the freedom which we alleged.
We who were responsible for the conduct of the Imperial Conference in 1926 must, I am sure, remember that when that Conference took place it was quite manifest that those representing at least those two Dominions had real doubt whether we actually intended, when we gave them Dominion status, to confer upon them that equality with ourselves, that freedom from outside interference, which we professed to give, and which no doubt such a Statute as the Colonial Laws Validity Act and such Common Law rules as that with regard to extraterritorial legislation, in form prevented them from enjoying. The problem which confronted us at that Conference was to try to persuade those Dominions, especially, that they had freedom and equality, and that these Statutes and Common Law rules were really obsolete survivals of a past state of affairs, which no longer regulated the relationships between the Mother Country and any one of the Dominions. It was because the acceptance of Lord Balfour's Declaration did absolutely satisfy those Dominions of our good faith, and did make them believe, as nothing else could, that we were in earnest, that that achievement of the noble Earl was not the least service which he rendered to this country.
I should not only have been content but I should have rejoiced if the matter could have been left there. I think it would have been better if the Balfour 215 Declaration could have stood as a statement of the constitutional relationship of this country to the Dominions, without any attempt to give it legislative effect. That was not the view of the Dominions. It was not merely South Africa or the Irish Free State. All the Dominions, I think with one exception, joined in impressing upon us that since we really meant this Declaration to define our constitutional relationship, there should be the necessary legal enactment framed, by consultation between lawyers from all over the Empire, which should give to that Declaration the effect of Statute Law, and it was one of the unanimous recommendations of the 1926 Conference that it should be followed up by what ultimately became the 1929 Conference, in which such a Statute should be considered and should, if possible, be worked out.
Well, the 1929 Conference took place. There were present at it the highest legal talent available to us in this country at the time, not only the Attorney-General of the day but such skilled civil servants as the Treasury Solicitor and the legal advisers, and others whose names appear in the Report. There were available for consultation and advice those expert draftsmen to whom every Government owes so much, and whose services we are rather apt to overlook when it comes to debate in the Houses of Parliament. They had with them the Attorney-General or eminent lawyers from each of the Dominions, and they spent some weeks in thrashing out together the best form in which to give legal effect to the Bal-four Declaration. Their Report was unanimously adopted in 1930 by the Imperial Conference of that year, which, after all, contained the accredited representatives of all the Dominions.
My noble friend Lord Lloyd suggested that really we were not sure that the Dominions themselves desired this legislation, and he suggested that we should refer this Statute either to a Select Committee or to a Joint Committee, or in some other way interpose delay in order that we might ascertain their wishes. I think I can satisfy the noble Lord that his fears are unfounded. What has happened with regard to the Statute is this. Not only did every Dominion join 216 in expressing its desire for the Statute, but all joined in passing a unanimous Resolution in 1930, which began by saying:
The Conference recommends:(a) the Statute proposed to be passed by the Parliament at Westminster"—that is, this Statute—should contain the provisions set out in the schedule annexed.That is, the provisions which this Statute contains.(b) that the 1st December, 1931, should be the date as from which the proposed Statute should become operative.(c) that with a view to the realisation of this arrangement, Resolutions passed by both Houses of the Dominion Parliaments should be forwarded to the United Kingdom, if possible by the 1st July, 1931, and, in any case, not later than the 1st August, 1931, with a view to the enactment by the Parliament of the United Kingdom of legislation on the lines set out in the schedule annexed.That was a Resolution unanimously passed stating in terms that they desired this legislation.
But since that date Resolutions have been passed by every one of the Dominion Parliaments. The noble Lord said some States have passed Resolutions differing from that view. Of course, the first answer is that, after all, it is the Dominions for whom we are immediately legislating, but also it is true to say that the Australian States which have passed those Resolutions have done so, not because they desire—and this is the important point—that there shall be a different relationship between this country and the Dominions than that enshrined in the Statute, not because they do not desire that the relationship between the Dominions and this country shall be formulated in the form of a Statute, but because they have misgivings as to whether or not the passage of this Statute would enable the Dominion Parliaments to overrule the States' rights.
§ LORD LLOYD
What the Dominions asked for was legislation "on the lines set out in the schedule." I have been venturing to ask that we should have a little closer consideration by a Select Committee, and not slavishly follow the particular Statute which is before us to- 217 day. And, indeed, in another place we were promised that consideration, because the Solicitor-General said:I am not giving a promise, to accept any particular Amendment, but I am undertaking that, with the opportunities for consideration now given to all these important matters, every single Amendment should be considered on its merits.Mr. Thomas gave another definite pledge to the House of Commons which quite clearly meant that the thing was not rigid, that they would reconsider the whole thing now that the House felt so strongly about it. They were not allowed, they were shut down. And it is for that reason that I would ask the noble and learned Viscount to reconsider it.
§ VISCOUNT HAILSHAM
There were two points that my noble friend made. One was a point as to whether the Dominions wanted it, another was a point as to whether the language of it might not be improved. I was dealing with the first point, and I had not forgotten the second. With regard to the first point, the anxiety of two or three States in Australia was as to whether the form of the Statute was not such as to enable the Commonwealth Parliament to override the States' rights. In July a clause was introduced into the Statute in order to safeguard those rights. After that had teen introduced there was correspondence between this country and the Commonwealth of Australia. Legal authorities were consulted. They seem to have reached a larger measure of agreement than my noble friend Lord Banbury gives them credit for usually achieving; and last month at the suggestion of the then Deputy-Leader of the Opposition. Mr. Latham, a Motion was carried in the Commonwealth Parliament which altered the exact language of Clause 9 (I think it is) of the present Statute, in order to allay the suspicions and doubts of the States. And if it should happen—I do not think it will—that later on the Commonwealth Parliament and the States—who, after all, have their elected members in the Commonwealth Parliament—should desire any different form of words they have only got to tell us so. There is no difficulty in our passing it. We have express provision made for passing legislation made by the Dominions at the request and with the con- 218 sent of the Dominions, but as far as the present situation is concerned we have the unanimous request of every Dominion to pass this legislation in this form.
And when they said "on the lines set out," my noble friend will remember that they went on to show what was meant, because the Statute was to contain such further provisions as to its application to any particular Dominion as are requested by that Dominion. The basis on which the Statute proceeded was that which is, I think, set out in the Preamble, that it is contrary to present constitutional practice for this country to legislate with regard to the affairs of any Dominion except at the request of that Dominion. That is inherent in the view that it is autonomous and free. And accordingly, when they resolved that they wanted this Statute, they went on to say each Dominion is going to be asked whether it wants exactly this legislation, and, if so, whether it wants some particular clause to safeguard its own interests, and, if it does, it will pass a Resolution with that modification. And, in fact, the Statute does contain the modifications which have been asked in respect of various Dominions—Clause 7, in respect of Canada, Clause 9, in respect of Australia, and so on.
§ Then my noble friend said: "Well, but why not send it to a Committee, and see if they cannot improve the drafting?" I venture to suggest to my noble friend that that would be an unfortunate thing in its repercussions on the Dominions themselves. The noble Marquess said that this Statute was hustled through, but at any rate it is not a Statute that has been nastily drafted. It is a Statute, which a special Committee of all the Dominions and ourselves spent weeks and months upon in 1929. It is a Statute which was thereafter carefully considered, literally word by word by a Special Committee, which was presided over by my noble and learned friend on the Woolsack, and which was attended by the Attorney-General or Prime Minister or both of each Dominion in 1930. Since then it has been considered by the Dominions and it is what the Dominions are asking us to pass.
§ If we were to say: "Well, this is what we agreed with you was the right form in 1929; this is the form which we 219 hammered out in 1930; this is the form which you have asked us to pass in 1931; but we think that we may be able, if we have a Select Committee of the House of Lords, to find some other words which will be a little more suitable," I think that some Dominions at any rate would not be slow to read into that hesitation a feeling that we really did not want to pass a Statute at all, and that we were seeking some sort of excuse to put off giving them what we had undoubtedly promised in 1926 that they should have. I for one should profoundly regret that any such impression should go forth. I think it would have a very unfortunate result in reviving suspicions which I had hoped were finally laid. I think, therefore, for reasons that I shall give in a moment, this is a particularly unfortunate time to run any risk of that kind. It is for that reason that I do not want to accept the suggestion which the noble Lord puts forward that we shall send this Bill to a Select Committee either to be sure that the Dominions want it—because I think we have ascertained that as well as we can—or to see whether we cannot improve the wording, because, as I say, I think we should find it very difficult to justify that attitude.
§ Then my noble friend Lord Buckmaster said that there was no means of interpreting the Statute. I think that was a cogent observation. There is no means provided of interpreting the Statute. Of course, according to the tradition of our law, if any question as to the meaning of the Statute arises in any private litigation, it will be determined by the Courts of the country in which that litigation arises. That is the ordinary rule which prevails, I think, in every country of the British Empire. But there is a possibility that a dispute might arise—I hope it will not—either between one and another of the Dominions or between one of the Dominions and the Mother Country. The Imperial Conference in considering that matter made a specific recommendation that there should be a tribunal which would be set up to deal with such a dispute. But they decided that it was better not to have a permanent tribunal constituted in advance but that the tribunal should take the form of an ad hoc tribunal, the general constitution of which they indicated, in case of any specific dispute. Therefore, although it 220 is true that there is no machinery provided in the Bill (because, after all, it would be rather difficult to enact in this Bill a tribunal which would have to be a new one and which would last for all time) there is machinery provided in the Conference for dealing with that contingency if it should arise.
§ VISCOUNT HAILSHAM
Not legislation. It would be really by negotiation between His Majesty's Ministers in the Dominion and His Majesty's Ministers in this country or the other Dominion as the case may be.
§ THE MARQUESS OF SALISBURY
But how would the tribunal have any authority unless there was legislation?
§ VISCOUNT HAILSHAM
They would have authority just in the same way as in an arbitration between, let us say, England and the United States they would have authority. If a dispute arose they were would be a Treaty setting up the tribunal and naming the people who would have to decide the particular point. The point would be argued before that tribunal. No doubt, the decision of the tribunal would be only binding upon the particular party who lost if they accepted the decision. But when you are dealing with a self-governing Dominion or when you are dealing with this country, after all you do not expect them to refer a matter to arbitration and then refuse to honour the award. I do not think that is a contingency which my noble friend regards as very likely to arise.
The noble Marquess called attention to the fact that there were restrictions in the Statute with regard, I think he said, to every country excepting the Irish Free State. As he has himself pointed out, that is not accurate.
§ THE MARQUESS OF SALISBURY
Except the Irish Free State and South Africa. There was a special Resolution of the Parliament of South Africa which took its place.
§ VISCOUNT HAILSHAM
I am obliged to the noble Marquess; that is an accurate way of stating it. There is a restriction with regard to three, at any rate, of the Dominions. In each case that restriction was inserted by the Dominion itself, and 221 it has requested us to pass that restriction. That is done not in order to limit the rights of that Dominion to legislate without regard to the Mother Country or the Imperial Parliament. In each case it has been inserted to protect the rights of the States which form part of the Dominion, against a possible encroachment on those rights by Dominion legislation which might be thought otherwise to override the ordinary authority of their Constitution. In the case of South Africa they would not have in this Statute any clause protecting those rights, because they resented (I think unreasonably, but that is not for us to say) the suggestion that the Imperial Parliament should put into an Imperial Statute anything which seemed in any way to limit the rights of the Dominion Parliament of South Africa. Accordingly, when they were confronted with the same difficulty they adopted the device, as the noble Marquess has said, of passing a Resolution, known as the entrenched clause, which is the clause which protects the rights of the different States which form the Union of South Africa. There they have adopted a Resolution which they think is effective. I am not concerned to discuss whether it is effective or not. They have chosen that means and have preferred to have nothing in regard to themselves in the Statute.
It is asked why should not we put something in about the Irish Free State? The first answer obviously is, because the Irish Free State has not made that request. In fact we know, as the noble Marquess has said, that the Irish Free State violently objects to the suggestion that we should put anything in. There was only one phrase, if he will allow me to say so, in the observations of the noble Marquess which I a little regretted. Be was discussing whether or not the Irish Free State could be trusted to carry out the obligations of the Treaty, and he quoted a sentence which was used apparently by Mr. Collins in a speech which I had not got but which, of course, I accepted from him, on the day the Treaty was signed. I was a little sorry that the noble Marquess chose that illustration in discussing the Bill; because, whatever Mr. Collins may or may not have said on the day that the Treaty was signed, I do not think anybody in this House will forget that Mr. Collins loyally carried out this Treaty not only at the 222 risk of his life, but with the knowledge that he was almost certainly going to pay for his loyalty with his life; in fact he has paid the forfeit. So that in dealing with that matter I am rather sorry that anything was said which would throw any doubt on Mr. Collins's intention to abide by his plighted word, when once he had signed it, in the Treaty of 1921.
With regard to the position of Ireland, it is true that legally we can if we like, put in any sort of proviso or restriction. The Imperial Parliament is supreme. But we know in advance that the Irish Free State violently objects.
§ VISCOUNT HAILSHAM
My noble friend asks why. For the reason that I was going to give—that every one of the other Dominions at the Imperial Conference last year supported them in objecting to this. It is not a new point. It was discussed at the Imperial Conference. A suggestion was made that some proviso of the kind should be put in, but no support could be obtained by the Mother Country for that suggestion, because the other Dominions said, just as the Irish Free State had said: "You are recognising in this Statute that you cannot legislate for a Dominion except with the consent and at the request of the Dominion. You cannot consistently with that immediately proceed to put into the Statute with regard to a Dominion something which it violently objects to having included." Every one of the Dominions was equally indignant at that suggestion. Without in the least discussing whether or not that made any difference to the position of the Treaty or any of those legal points which my noble friend asked me about, they said: "As a matter of principle we object,, and we shall resent very much any attempt to limit by Imperial Statute the powers of any Dominion except at the request of that Dominion."
§ LORD DANESFORT
May I ask a short question? Should we not be entitled in this country to put something into this Bill even though the Irish Free State do rot ask for it, something which would, on the one hand, protect the interests of this country and, on the other hand, protect the interests of the minority in Ireland, who have no one to speak for them there?
§ VISCOUNT HAILSHAM
We have a perfectly legal right to put anything into this Statute. Parliament is supreme. But we should not be justified in doing it if we are to be consistent with the Balfour Declaration and with the position which we then accepted. I was asked about the maintenance of the Treaty. I have no authority in these days to speak as a lawyer; I represent a different Department in your Lordships' House. In another place, however, the advice which competent lawyers have given, those who are competent and qualified to advise the Crown, was stated to the House by the Lord President of the Council. He stated his view and their advice in these terms:I am advised by the Law Officers of the Government that the binding character of the Articles of Agreement will not be altered by one jot or tittle by the passing of the Statute.That is the advice given by the responsible advisers of the Crown. My noble friend will forgive me, but what is the good of asking me if I agree with the Law Officers?
§ VISCOUNT HAILSHAM
I am sorry it is not possible to gratify my noble friend. That is the advice which I am content to act upon and which the noble Marquess is content to act upon. I do not want to fence with the question, but that really is not the point in issue here as I see it. We all agree in this House that the Treaty should be maintained. We all agree that the Irish Free State—I am not using legal phrases—is as much bound as any sovereign State can be by its pledged word, whether or not this Statute passes or does not pass. We all agree that this Statute cannot alter that position. Not only do we agree, but we have the statement from the responsible head of the Irish Free State Government that they agree. My noble friend Lord Danesfort wants to know if that will bind his successors. What does he mean by "bind"? If he means, will that be binding in honour on the Irish Free State, cannot he answer that question himself? Here is a Statute which we are asked by the Irish Free State to pass, which in our deliberate 224 view cannot possibly alter the obligations of the Treaty as it stands before the Statute is passed. The Irish Free State, in asking us to pass it, give us their solemn assurance by the head of the State that it is on that basis they ask us to pass it. Can you then doubt that the Irish Free State is bound, as far as it is possible to bind any sovereign Power in the world, by the declaration on the faith of which we passed that Statute? The noble Lord, Lord Danesfort, asks why should they mind it being put in the Bill. Why should a man object to being asked if he intends to keep his word? I do not know about Lord Danesfort, but I should certainly object to being asked if I will keep my pledged word.
§ LORD DANESFORT
If Mr. Cosgrave says that he and his Government are going to keep the Treaty, what is the objection to putting that into the Bill?
§ VISCOUNT HAILSHAM
If the noble Lord thinks that that is inoffensive, that is not Mr. Cosgrave's view. After all, what you are asked to do here is to pass a Statute which the Dominions want. It is, of course, possible to say to the Dominions: "We do not trust you. We do not think you can be trusted with complete autonomy. We are going to hedge round our concessions to you. We are going to grant whatever we are pledged to give, but not an inch more, and we are going to tie you down with every kind of legal bond and fetter we can devise to prevent you doing something which you are pledged in honour not to do." We can take that attitude if we like, but it is a very unstatesmanlike and unwise attitude to adopt. When once we made up our minds, as we did in 1926, that we were going to assure the Dominions that we treated them as free States, freely associated with ourselves, then once and for all we gave up the position of saying: "We do not really trust you in free association. We are going to tie you down to see that you do not depart from the honourable bonds into which you have entered."
I want to say a word about the Privy Council, because the noble Marquess spoke about that and it is important that there should be no misunderstanding. The noble Marquess stated that the right to petition the King for leave to appeal to the Privy Council was a term 225 of the Treaty. Let me say emphatically that I agree with him in that view. I too think it is a term of the Treaty. The difficulty which arises—and it is a real difficulty—is that the Irish Free State his persistently and consistently denied that interpretation. It is not in terms, as the noble Marquess remembers, stated in the Treaty. It is implicit in the Treaty by virtue of the assimilation of the status of the Irish Free State to the status of Canada, where undoubtedly the right exists and where it has been decided in a Privy Council case that the right cannot be taken away by the Canadian Parliament. We think that the effect of that is to make it a Treaty right, which cannot be abrogated except by agreement between the two countries. We know—and Lord Danesfort has reminded us—that the Irish Free State does take a different view and, because it has taken a different view, it has gone out of its way to render that right of appeal useless in practice. Every time the Privy Council has given a decision adverse to the decision of the Irish Courts they have proceeded by legislation to destroy the effect of that decision. I am not justifying it. I think it is a very wrong thing to have done and, as far as I know, His Majesty's Government share that view. I do not desire to ask Mr. Cosgrave whether he now thinks it is in the Treaty. I know that they have always said it is not.
THE MAUQUESS OF SALISBURY
May I put a question? The noble Viscount has explained to your Lordships, with that clearness which always characterises him, that henceforth there if to be the machinery of a special tribunal which is to decide the differences of opinion as to construction between the Dominions and tie Mother Country. Will that procedure be applied to decide whether the Privy Council jurisdiction is within the terms of the Treaty?
§ VISCOUNT HAILSHAM
That is a very proper question, if the noble Marquess will forgive my saying so. All I can answer is—I am not speaking after consultation with the Secretary of State for the Dominions—that I shall certainly press the Secretary of State for the Dominions to insist as strongly as he can that our view is right and that, if the Irish Free State takes a contrary it should be a matter for inter- 226 pretation by that tribunal. But I cannot promise the noble Marquess that we shall succeed in persuading the Irish Free State of our view or in getting them to consent to that procedure. All I can say is that we shall press our view of the point at issue. I know that it is unsatisfactory, but, because it is unsatisfactory, I thought it right to state it in this House at this time. It would not be fair to your Lordships to ask you to pass this Bill, as I believe you are going to, without making it clear that there is a risk that the Irish Free State may take a different view from ourselves and may refuse to accept an independent decision upon it.
I think it would be a very unfortunate decision for them to take, and it certainly would not convince one of their own belief in the justice of their cause. There is that risk, but, on the other hand, if you do not pass the Statute, the Irish Free State might just as equally go on doing in future as they have done in the past, pass an Act of Parliament destroying the effect of every decision which the Privy Council gives. It might even, as the noble Lord has told us, proceed unilaterally to pass legislation which I think would be ultra vires, because it is outside the Treaty, abolishing the right. My noble friend Lord Danesfort said: "You could impose your will on the Irish Free State by means of a tariff or by some other means." You can do that if you thought it right and wanted to do it, you could do that whether or not this Statute had been passed or whether or not it had been rejected. You cannot effectively compel any Dominion, in my judgment, to carry out obligations to which it is bound in honour 'when once you have recognised that they really are in the autonomous position which the Balfour Declaration gives them. Therefore it is far better, as I see it, quite frankly to recognise that position, and to say: "We know it is honour, and honour alone, on which we rely for you to maintain your obligations, and we are bound to trust to your honour," rather than to attempt to trust to legal bonds which in practice must be entirely futile if we over try to put them into force.
That is the position, speaking generally. I would only like to add this, that if ever there were a time when it is important in my judgment to do nothing to 227 disturb the good relations between this country and the Dominions, or to revive any old mistrust or ill-will that may be dormant or latent in any of their minds, now is the time when it would be foolish to do anything of the kind. The legal bonds undoubtedly have gone. I think that something is required to reinforce those sentimental bonds which the noble and learned Lord, Lord Buckmiaster, referred to in eloquent language earlier this afternoon. I think that there is an opportunity coming to ns in this country now which may never come again, which must be grasped quickly if it is to be grasped at all, of forging a more permanent link, a more material link, which will so tighten up the relationship between every part of the Empire that in time to come it would be unthinkable for any of them, from the mere point of view of self-interest, to divorce themselves from the material well-being and prosperity as well as the moral strength which their membership of the British Commonwealth of nations involves.
But the time is very short. No one who has studied contemporary politics can doubt that more than one nation would be very sorry to see us achieve that ambition. No one can doubt that if we do achieve it it will mean a tremendous advantage to the trade and commerce of this country and a corresponding disadvantage to those countries who will protanto be ousted from markets which we thereby can enjoy. They will use every effort to fan the flames of distrust, to create discord, perhaps even to make offers which they hope may prove more tempting than any which we can hold out; and it is in my judgment of prime importance in the Imperial interest of the whole Empire and in the national interest of this country at this moment that we should lose no possible chance of link- 228 ing up the Empire permanently together, and of substituting for legal ties ties of material well-being, of material prosperity and of that good-will which comes from trade relationships and from friendly discussions such as the various Dominions hope soon to enjoy. It is for that reason I would urge upon your Lordships not only to accept the advice which my noble friend Lord Salisbury gave in such clear language to pass the Second Reading, but to pass the Bill without amendment as quickly as may be, believing that in so doing we are taking the wisest course, not only in the interests of this country, but in the interests of the whole Empire and that civilisation to which this Empire is so strong a bulwark.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.